photo credit: m o d e

Last night, the Sutherland Institute and Equality Utah held a debate to present each side’s ideas, field each others’ questions, and respond to some public questions as well. Each camp seemed to have an overriding theme connecting their ideas and arguments. Equality Utah’s theme was framed by Will Carlson, policy director for the organization, who asserted in his opening remarks that just because we don’t agree on everything, that should not mean that we cannot agree on anything. This “can’t we all just get along” argument was a common thematic element of Equality Utah’s statements throughout the night, as they described why they felt that the “basic protections” provided by the bills in their initiative should pass.

The Sutherland Institute’s theme might best be painted in terms of the “laws of nature and of nature’s God,” a core principle found in the Declaration of Independence and cited several times throughout the evening by LaVar Christensen. In a common vein, Sutherland president Paul Mero’s opening remarks forcefully argued that Equality Utah’s beliefs and opinions are, at their core, an illusion. While perhaps not immediately apparent, I believe that LaVar’s references to natural law explain Paul’s argument.

Had I had the opportunity (time was limited), I would have proposed the following question to Equality Utah:

There have been a few references this evening to natural law—a fundamental legal theory upon which our founding documents were based. How do you reconcile your position (if at all) with natural law, and how (if at all) is natural law relevant to the issue at hand?

The problem with this question is that Equality Utah would be forced by the very nature of their position to abandon natural law entirely and make their claims entirely from the basis of natural law’s antithesis, legal positivism.

Positivism is a legal theory that asserts that laws are made by humans, and thus are subject to the whims and desires of those who govern. No natural or innate rights are observed, nor is any connection with morality recognized; in this model, the people look to the government as the sole source and arbiter of the freedoms they enjoy. In a positivist’s mind, the goal of government is to secure the greatest benefit for the greatest number of people (and in this sense echoes the unstated goal of a pure democracy).

Natural law, on the other hand, recognizes a Higher Power from which individual rights are derived. Judge Andrew Napolitano has written this summary:

Natural law teaches that the law extends from human nature, which is created by God. The natural law states that because all humans desire freedom from artificial restraint, and because all human beings yearn to be free, our freedoms stem from our very humanity and, ultimately, from the Creator of humanity.

Natural law is not linked to a particular religion, or to religion at all, necessarily. The ideas simply include rights and rules beyond those written or used by government officials. It recognizes that as human beings, we must have a core set of liberties in order to live just and peaceful lives. Humanity is the basis for these rights, and therefore they are common to all of us.

These liberties belong to us by virtue of our nature, and they persist in spite of any action the government may take against them, regardless of alleged necessity or majority rule. (Andrew P. Napolitano, A Nation of Sheep, p. 2)

Mr. Mero’s assertion that homosexual behavior and its campaign for sanction through public policy are illusions requires the understanding that the legal and societal acceptance of homosexuality as it pertains to marriages and families conflicts with natural law. Taken to its extreme, homosexuality would spell the immediate end of that society which wholly embraced it; without modern and medical intervention, there would be no children and hence no propagation of the species. Artificial attempts to mimic this family life (through artificial insemination) are by their very nature unnatural.

Nature is not without its anomalies, however, as is the case with almost any commonly accepted standard or law. Circumstances abound in which some unique or random exception is made to what is generally understood to be natural. The human child born with twelve fingers and twelve toes serves as a recent example that illustrates this concept. But natural occurrences imply frequency and renewal, meaning that propagation and perpetuation are both inherent and imperative.

We enter a “brave new world” of sorts when there is a concerted effort to blur the lines between nature and its anomalies. Were we to consider a human with 24 digits to be natural, then we have just redefined the definition of nature itself as it applies to humans. When nature is confused and conflated with its limited number of aberrations, then it is anybody’s best guess as to what should not be included in the description of what a natural thing is. In such ways are words rendered meaningless.

The quest to classify homosexuality and its public manifestations as being natural (innate, genetic, etc.) of necessity ignores the reality that this “illusion” (to borrow Mr. Mero’s term) can only persist in longevity and totality so long as artificial means are used. To demand the public acceptance of homosexual marriage and parenthood requires ignoring this simple fact.

But since a successful argument cannot be made which reconciles homosexuality with natural law, legal positivism is the only tool left by which these activists can demand the “rights” they seek. Thus we see bold campaigns to secure the government approval of an entity which before government did not exist. Without the force of law and the positivist creation of these so-called “fundamental rights”, homosexual marriage and its many legislative precursors would not stand a chance.

Natural law is the common ground we must discuss—our common inheritance of individual, inalienable rights not granted by government, but by God. Anything short of this recognition of the source of our rights leads to confusion and a democratic cry for the strong arm of government to dictate what freedoms certain groups of individuals should be granted, often at the expense of other individuals.